South Africa’s “Secrecy” Bill: A Blow to Post-Apartheid Democracy

A demonstrator protests against the passing of the Protection of Information Bill outside Parliament in Cape Town, November 22, 2011. (Photo: Mike Hutchings / Reuters)

If in any revolution, there is a moment after which it becomes unstoppable, that moment came for South Africa on Feb. 11, 1990, when Nelson Mandela walked free after 27 years in jail. But if there arrives another moment after which a revolutionary party — too long in power, too arrogant, too corrupt — can no longer claim to act for the people, for many South Africans it arrived on Tuesday when Mandela’s successors denied, in law, that there is such a thing as the public interest.

The occasion was the passing of new legislation on guarding state secrets, the Protection of State Information Bill. Under it, the state now has the power to decide what documents to classify as secret in the “national interest.” Anyone possessing such classified documents can be sentenced to up to 25 years in jail. The law passed by 229 votes to 107 in the 400-member National Assembly, in which the ruling African National Congress holds a majority.

Draconian laws to protect government secrets and national security are normal, even in the most liberal democracies. Also conventional is a counter-balancing defense, designed to protect whistle-blowers and journalists, of acting in the public interest. This the ANC refused to enshrine in law. State Security Minister Siyabonga Cwele even went so far as to describe inserting a legal clause that acknowledged the public interest as “reckless.”

South Africans (some of whom wore black to mark “Black Tuesday”) can be forgiven for wondering whether Cwele, and other ANC leaders, are best placed to pass judgment on their interests – and whether their real motive is to muzzle the press. After all, in May Cwele’s wife was convicted of running an international drug ring, prompting demands for his resignation on the not unreasonable grounds that if Cwele was unaware his wife was a drug smuggler, what confidence could the public have in his abilities in security and intelligence? (The minister divorced his wife in September. She is currently out on bail pending an appeal against her conviction.)

The motives of other ANC leaders are also open to question, not least those of President Jacob Zuma. Zuma, and the ANC, have been haunted for years by allegations of kickbacks surrounding a $3.6-billion deal to buy European military equipment. Zuma was linked to the 1999 deal through his former financial adviser, Schabir Shaik, who was jailed for corruption in 2005 for trying to solicit a $61,000 a year bribe from French arms company Thint — now known as Thales — in return for protecting it from an investigation. The charges against Zuma and the French firm were dropped in 2009 after a contentious, complicated and highly politicized process. At the weekend, the Sunday Timesreported Zuma’s spokesman Mac Maharaj also received 1.2 million French francs paid to his wife to facilitate the deal. Maharaj denies any wrongdoing and has filed a lawsuit against South Africa’s Mail and Guardian newspaper to prevent it publishing its own details of the story — something that would be unnecessary under the new law because, since newspapers broke the story using secret documents, such actions would be illegal.

The scandals that have dogged the ANC in government are hardly limited to the arms deals, however. Zuma’s two-year government alone has faced a tide of allegations over misuse of official expenses and Zuma had to sack one minister and suspend his police chief after they were named in a government report as signing off on inflated lease deals for police buildings that benefited a real estate tycoon with close ties to the government (both officials have denied the charges).

Critics see the new law as part of a concerted attempt by the ANC elite to protect itself from further scandal. The party has already disbanded the police’s investigative unit, the Scorpions, one of whose primary tasks was to investigate ministers and officials for corruption. The new law goes further, said the editors of 18 daily news publications in a joint editorial Tuesday. The editors called it “the first piece of legislation since the end of apartheid that dismantles an aspect of our democracy.”

There is perhaps no more authoritative judge of the ANC’s dramatic loss of moral substance since the days of Mandela than Nobel Peace Prize Winner Archbishop Desmond Tutu. On Tuesday he said it was “insulting to all South Africans to be asked to stomach legislation that could be used to outlaw whistle-blowing and investigative journalism … and that makes the state answerable only to the state.” By Tutu’s recent standards, that’s a mild rebuke. In October he lambasted the ANC for refusing the Tibetan spiritual leader, the Dalai Lama, a visa to South Africa, where Tutu was celebrating his 80th birthday party. Describing the ANC government as “worse than the apartheid government,” he warned: “You, President Zuma and your government, do not represent me. I am warning you, as I warned the [pro-apartheid] nationalists, one day we will pray for the defeat of the ANC government. The ANC know they have a large majority. Well, Mubarak had a large majority, Gaddafi had a large majority. I am warning you: Watch out. Watch out.”